IN THE UNITED STATES COURT OF APPEALS WINN-DIXIE

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No. 17-13467IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUITWINN-DIXIE STORES, INC.,Defendant-Appellant,v.JUAN CARLOS GIL,Plaintiff-Appellee.On Appeal from a Final Judgmentof the United States District Court for the Southern District of FloridaDistrict Court No. 16-cv-23020-SCOLAPLAINTIFF-APPELLEE JUAN CARLOS GILPETITION FOR REHEARING EN BANCDAVID FERLEGERLAW OFFICE OF DAVID FERLEGERJOSHUA M. ENTINENTIN LAW GROUP, P.A.413 Johnson St., Suite 203Jenkintown, PA 19046(215) 498-1777 david@ferleger.com633 S. Andrews Avenue, Suite 500Ft. Lauderdale, Florida 33301(954) 761-7201 josh@entinlaw.comAttorneys for Plaintiff-Appellee Juan Carlos Gil

No. 17-13467IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUITWINN-DIXIE STORES, INC.,Defendant-Appellant,v.JUAN CARLOS GIL,Plaintiff-Appellee.CERTIFICATE OF INTERESTED PERSONS ANDCORPORATE DISCLOSURE STATEMENTPlaintiff-Appellee, JUAN CARLOS GIL, by and through undersignedcounsel and pursuant to 11th Cir. R. 26.1-2(c), hereby submits a complete list ofall persons and entities known to have an interest in the outcome of the instantmatter:1.Ackerbaum Cox, Esq., Joyce2.American Bankers Association3.American Hotel & Lodging Association4.American Resort Development Association5.Amador, Esq., Angelo I.6.Asian American Hotel Owners Association7.ARP Ballentine, LLCC- 1

8.ARP Chickamauga, LLC9.ARP Hartsville LLC10.ARP James Island LLC11.ARP Moonville LLC12.ARP Morganton LLC13.ARP Winston Salem LLC14.Baker & Hostetler, LLP15.BI-LO Finance Corp.16.BI-LO Holding Finance, Inc.17.BI-LO Holding Finance, LLC18.BI-LO Holdings Foundation, Inc.19.BI-LO Holding, LLC20.BI-LO, LLC21.Chamber of Commerce of the United States of America22.Cronan, Esq., Candace Diane23.Della Fera, Esq., Richard24.Dinin, Esq., Scott R.25.District Judge Robert N. Scola, Jr.26.Dixie Spirits Florida, LLC27.Dixie Spirits, Inc.C- 2

28.Entin Law Group, P.A. f/k/a Entin & Della Fera, P.A.29.Entin, Esq., Joshua M.30.Ferleger, Esq. David31.Florida Justice Reform Institute32.Galeria, Esq., Janet33.Gil, Juan Carlos34.Harned, Esq., Karen R.35.International Council of Shopping Centers36.Lazar, Jonathan37.Lumpkin, Esq., Carol C.38.Milito, Esq., Elizabeth39.Moot, Esq., Stephanie N.40.National Association of Convenience Stores41.National Association of Realtors42.National Association of Theatre Owners43.National Federation of Independent Businesses44.National Multifamily Housing Council45.National Retail Federation46.Nelson Mullins Riley & Scarborough LLP47.Opal Holdings, LLCC- 3

48.Postman, Esq., Warren49.Samson Merger Sub, LLC50.Scott R. Dinin, P.A.51.Shaughnessy, Esq., Kevin W.52.Southeastern Grocers, LLC53.Vermuth, Justin, Esq.54.Warner, Esq., Susan V.55.We Care Fund, Inc.56.Winn-Dixie Logistics, LLC57.Winn-Dixie Montgomery, LLC58.Winn-Dixie Montgomery Leasing, LLC59.Winn-Dixie Properties, LLC60.Winn-Dixie Raleigh Leasing, LLC61.Winn-Dixie Raleigh, LLC62.Winn-Dixie Stores Leasing, LLC63.Winn Dixie Stores, Inc.64.Winn-Dixie Supermarkets, Inc.65.Winn-Dixie Warehouse Leasing, LLCDavid FerlegerATTORNEY OF RECORDC- 4April 15, 2021

STATEMENT OF COUNSELI express a belief, based on a reasoned and studied professional judgment, thatthe panel decision is contrary to the following decisions of the Supreme Court of theUnited States or the precedents of this circuit and that consideration by the full courtis necessary to secure and maintain uniformity of decisions in this court:1. The majority discarded the circuit’s established “nexus” standard fordetermining if there is a sufficient connection between a place of publicaccommodation’s physical site and a good, service, facility, privilege,advantage, or accommodation it provides outside of its physical site (such asits website) such that the offering is subject to the ADA. Rendon v. ValleycrestProds., 294 F.3d 1279 (11th Cir. 2002); Haynes v. Dunkin' Donuts, LLC, 741Fed. App’x 752, 754 (11th Cir. 2018).2. In this case regarding discrimination against blind internet users, themajority’s standard of comparison (“a sighted customer who does not haveinternet access”) violates the established standard under A.L. v. Walt DisneyParks & Resorts US, Inc., 900 F.3d 1270, 1294-95 (11th Cir. 2018); Silva v.Baptist Health S. Fla., Inc., 856 F.3d 824, 834 (11th Cir. 2017) (a nondisabled person accessing the website).3. The majority’s opinion setting new precedent that websites per se are not“places of public accommodation” under Title III of the Americans withi

Disabilities Act (ADA) is inconsistent with the principle that panels shouldnot make holdings on issues not decided by the lower court and not litigatedon appeal. See United States v. McAllister, 77 F.3d 387 (11th Cir. 1996), cert.denied, 519 U.S. 905 (1996); United States v. Strickland, 682 Fed. App’x 742(11th Cir. 2017); United States v. Lewis, 115 F.3d 1531 (11th Cir. 1997).I express a belief, based on a reasoned and studied professional judgment, thatthis appeal involves one or more questions of exceptional importance:1. Did the panel majority err in abandoning the firmly established “nexus”standard, thereby imposing the most limits of any circuit on the protectionfrom discrimination in the ADA remedial scheme?2. Does Winn-Dixie’s operation of a website that provides goods, services,facilities, privileges, advantages, or accommodations but is inaccessible toblind customers violate Title III’s prohibition of “different treatment” ofindividuals with disabilities, 42 U.S.C. § 12182(b)(2)(A)(iii), and theimplementing regulation which requires the furnishing of “appropriateauxiliary aids and services where necessary to ensure effectivecommunication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1)?3. Did the panel majority unnecessarily hold that websites per se are not “placesof public accommodation” under the ADA, where: (a) the district courtii

explicitly declined to decide the issue, and (b) the panel indicates that it agreesthat its holding is unnecessary and is not required for resolution of this appeal?See United States v. McAllister, 77 F.3d 387, 389 (11th Cir. 1996), cert.denied, 519 U.S. 905 (1996); United States v. Strickland, 682 Fed. Appx. 742,743 (11th Cir. 2017); United States v. Lewis, 115 F.3d 1531, 1539 (11th Cir.1997).4. When the challenged three-year injunction expired post-argument, prior toissuance of the panel opinion, did this appeal become moot? Already, LLC v.Nike, Inc., 568 U.S. 85, 90 (2013).David FerlegerATTORNEY OF RECORDApril 15, 2021iii

TABLE OF CONTENTSCERTIFICATE OF INTERESTED PERSONS AND CORPORATEDISCLOSURE STATEMENTC-1STATEMENT OF COUNSELiTABLE OF CASES AND OTHER AUTHORITIESvPROCEEDINGS1PETITION FOR REHEARING EN BANC3ARGUMENT4I.CONTRADICTING THIS COURT’S ESTABLISHEDLAW, THE PANEL MAJORITY ABANDONED THE“NEXUS” STANDARD.4II.WINN-DIXIE’S VIOLATION OF THE STATUTE ANDREGULATION IS CLEAR. THE LITY REQUIREMENTS TO NAUGHT.8III. IN THIS CASE REGARDING DISCRIMINATION AGAINSTBLIND INTERNET USERS, THE MAJORITY’SSTANDARD OF COMPARISON CONTRADICTS THESTANDARD ESTABLISHED IN A.L. V. WALT DISNEYPARKS & RESORTS US, INC. AND SILVA V. BAPTISTHEALTH S. FLA., INC.10IV.THE PANEL DECISION OF A “PRIMARY” ISSUEWHICH WAS – TWICE – NOT DECIDED BY INTHECIRCUMSTANCES OF THIS CASE.iv12

V.THIS CASE IS MOOT. THERE IS NO LONGER ANYARTICLE III CASE OR CONTROVERSY.CONCLUSION1416Panel Majority and Dissenting Opinions (slip opinion attached; reportedat Gil v. Winn-Dixie Stores, Inc., 2021 U.S. App. LEXIS 10024; 2021WL 1289906; F.3d (11th Cir. 2021)TABLE OF CASES AND OTHER AUTHORITIESCASESAccess Now v. Southwest Airlines, 227 F. Supp. 2d 1312, 1320 (S.D. Fla.2002)5A.L. by and through D.L. v. Walt Disney Parks & Resorts US, Inc., 900F.3d 1270 (11th Cir. 2018)i, iv, 4,10, 11,Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013.iii, 15Carroll v. Fed Financial Fed. Credit Union, 324 F. Supp. 3d 658 (E.D. Va.2018)6Castillo v. Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 881 (N.D. Ohio 2018)6Dominguez v. Banana Republic, LLC, 2020 U.S. Dist. LEXIS 72193, 2020WL 1950496 (S.D.N.Y. 2020)6Doron Precision Systems, Inc. v. FAAC, Inc., 423 F.Supp.2d 1737v

(S.D.N.Y. 2006)Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998)6Fuller v. Mazal Group LLC, 2018 U.S. Dist. LEXIS 129969, 2018 WL3584700 (S.D. Fla. 2018)5Gil v. Winn-Dixie Stores, Inc., 242 F. Supp. 3d 1315 (S.D. Fla. 2017)13Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017)13Gil v. Winn-Dixie Stores, Inc., 2021 U.S. App. LEXIS 10024; 2021 WL1289906; F.3d (11th Cir. 2021)vHaynes v. Dunkin' Donuts LLC, 741 Fed. App’x 752 (11th Cir. 2018)i. 5, 13,Haynes v. Hooters of Am., LLC, 893 F.3d 781 (11th Cir. 2018)13Haynes v. Kohl's Dep't Stores, Inc., 391 F. Supp. 3d 1128, 1134 (S.D. Fla.2018)5Haynes v. Pollo Operations, Inc., 2018 U.S. Dist. LEXIS 51748, *5, 2018WL 1523421, *2 (S.D. Fla. 2018)5In re UBS Auction Rate Securities Litigation, No. 08 Civ 2967 (LMM),2010 U.S. Dist. LEXIS 59024, 2010 WL 2541166, *15 (S.D.N.Y. June 10,2010)7Jancik v. Redbox Automated Retail, LLC, No. SACV 13-1387-DOC(RNBx), 2014 U.S. Dist. LEXIS 67223, 2014 WL 1920751, at *8-9 (C.D.Cal. May 14, 2014)6K.T. v. Royal Caribbean Cruises, Ltd., 931 F.3d 1041 (11th Cir. 2019)7Kennedy v. Siesta Inn & Suites, Inc., 828 Fed. App’x 658 (11th Cir. 2020)13vi

Kremens v. Bartley, 431 U.S. 119(1977)15Monsanto Co. v. PacifiCorp, No. CV 01-607 E LMB, 2006 U.S. Dist.LEXIS 27565, 2006 WL 1128226 (D. Idaho Apr. 24, 2006).7Nat'l Fed'n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal.2006)6Rendon v. Valleycrest Prods., 294 F.3d 1279 (11th Cir. 2002)i, 5,Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824 (11th Cir. 2017)i, iv, 4,8, 10, 11Thole v. U. S. Bank N.A, 140 S. Ct. 1615, 207 L. Ed. 2d 85 (2020)15United States v. Lewis, 115 F.3d 1531 (11th Cir. 1997)ii,, iii, 13United States v. McAllister, 77 F.3d 387 (11th Cir. 1996), cert. denied,519 U.S. 905 (1996)ii,, iii,13,United States v. Strickland, 682 Fed. App’x 742 (11th Cir. 2017)ii,, iii,13,Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.2000)6Young v. Facebook, Inc., 790 F. Supp. 2d 1110 (N.D. Cal. 2011)6STATUTES AND REGULATIONS42 U.S.C., Fed.R.Evid. 201742 U.S.C. § 12182 (Title III of the ADA)1,vii

2, 7, 8,9, 1042 U.S.C. § 12182(a)42 U.S.C. § 12182(b)(1)(A)(i)242 U.S.C. § 12182(b)(1)(A)(ii)242 U.S.C. § 12182(b)(2)(A)(iii)ii, 928 C.F.R. § 36.201(a)2,28 C.F.R. § 36.202(a)226 C.F.R. § 36.202(b)228 C.F.R. § 36.302(a)228 C.F.R. § 36.303(c)(1)ii, 8viii

PROCEEDINGSJuan Carlos Gil is visually impaired and has a qualified disability under theAmericans with Disabilities Act (“ADA”). He lives in Miami. Gil’s inability to seea computer screen does not prevent him from using a properly formatted websitewhen assisted by screen reading software. He has been a customer of Winn-Dixiefor many years. Dist.Ct. Doc 63. Winn-Dixie is the owner and operator of a regionalchain of grocery stores located in the Southeastern United States. (D.E. 34 at 4).Winn-Dixie has 495 stores throughout Florida, Georgia, Alabama, Louisiana, andMississippi, some of which have pharmacies. (Id.; D.E. 65 85:2-6.). As an entrée ebsiteatwww.winndixie.com. At the time of trial, the website was not accessible to the blind.On July 12, 2016, Gil filed a Complaint against Winn-Dixie pursuant to TitleIII of the ADA, 42 U.S.C. § 12182, alleging that Winn-Dixie’s website wasinaccessible to the visually impaired and requested declaratory and injunctive relief.On June 5 and 6, 2017, the district court held a non-jury trial, heard testimonyfrom several witnesses, and considered other evidence. On June 12, 2017, the courtentered its Verdict and Order Following Non-Jury Trial (Doc. 63) (“Verdict”),finding that, in violation of the ADA, “the inaccessibility of the Website has deniedGil the full and equal enjoyment of the goods, services, facilities, privileges,advantages, or accommodations that Winn-Dixie offers to sighted individuals.”1

(Verdict at 10).1 As the Court put it, “Web accessibility is about ensuring that allpeople are able to use the web regardless of any physical and mental disabilities.”(Verdict at 6).The Court found that remediation of the Website was readily achievable andreasonable. Since Winn-Dixie did not offer any alternative standard, and thecompany acknowledged that it intended to comply with the only standard advancedby any party at trial, the Court ordered Winn-Dixie to undertake remediationmeasures on its Website in conformity with the industry-consensus Web ContentAccessibility Guidelines (WCAG). (Verdict at 11).On July 6, 2017, the district court entered an Order and Injunction as well as(Final) Judgment in favor of Gil and against Winn-Dixie. (Doc. 67, 68). The districtcourt’s July 5, 2017 Verdict and Injunction (D.Ct., Doc. 67) enjoined that WinnDixie’s website be made accessible under the ADA. The injunction order states, “thisInjunction will expire in three years,” i.e., July 5, 2020.1Title III of the ADA prohibits discrimination by public accommodations, entitlingindividuals with disabilities to “full and equal enjoyment of the goods, services,facilities, privileges, advantages, or accommodations of any place of publicaccommodation.” 42 U.S.C. §12182(a); 28 C.F.R. § 36.201(a). Such discriminationcan occur in several ways, including denial of participation (42 U.S.C. §12182(b)(1)(A)(i); 28 C.F.R. § 36.202(a)), affording an unequal benefit (42 U.S.C.§ 12182(b)(1)(A)(ii); 26 C.F.R. § 36.202(b)), or failure to make changes to existingaccess barriers or policies. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).2

On July 31, 2017, Winn-Dixie noted its appeal. The appeal was argued beforea panel of this Court on October 4, 2018. The injunction expired 21 months later, onJuly 5, 2020. The panel issued its decision on April 5, 2021, over a dissent. 2021U.S. App. LEXIS 10024; 2021 WL 1289906; F.3d . (Hon. Elizabeth L. Branchfor the majority, with visiting judge, Hon. Chief Judge Danny C. Reeves (E.D. Ky)),Hon. Jill A. Pryor authored the dissent.On April 9, 2021, the Court ordered: “A judge of this Court withholdsissuance of the mandate in this appeal.”PETITION FOR REHEARING EN BANCPlaintiff-Appellee Juan Carlos Gil (“Gil”) respectfully petitions thisHonorable Court to rehear this case en banc. The appeal is moot; the underlyingtime-limited injunction expired months after oral argument here and there is noArticle III case or controversy. If the appeal is not dismissed, the panel decisionshould be vacated, and the decision below affirmed. Reasons for en banc rehearinginclude:1. Contradicting this Court’s established law, the panel majority abandoned the“nexus” standard for determining whether the ADA applies to a publicaccommodation’s website. (Section I).3

2. The majority’s new precedent on when a public accommodation’s website issubject to the ADA deviates from the plain text of the remedial statute and offersthe least protection from discrimination of any circuit. (Section II).3. In this case regarding discrimination against blind internet users, the majority’sstandard of comparison (“a sighted customer who does not have internet access”)contradicts the standard established in A.L. v. Walt Disney Parks & Resorts US,Inc., and Silva v. Baptist Health S. Fla., Inc. (Section III).4. The panel majority unnecessarily held that websites per se are not “places ofpublic accommodation.” Twice the district court explicitly declined to decide thatissue and the panel indicates that that holding is not required for resolution of thisappeal. (Section IV).5. This case is moot. The challenged injunction expired last year, leaving no ArticleIII case or controversy between the parties. (Section V).ARGUMENTI.CONTRADICTING THIS COURT’S ESTABLISHED LAW, THEPANEL MAJORITY ABANDONED THE “NEXUS” STANDARD.Contradicting this Court’s established law, the panel majority abandoned the“nexus” standard for determining if there is a sufficient connection between a placeof public accommodation’s physical site and a good, service, facility, privilege,advantage, or accommodation it provides outside of its physical site (such as its4

website) such that the offering is subject to the ADA. Maj. Op. at 25 (“And wedecline to adopt a ‘nexus’ standard here, as we find no basis for it in the statute or inour precedent.”). The district court utilized the familiar governing nexus standard.This Court’s prior adoption of the “nexus” approach cannot reasonably bedoubted. Rendon v. Valleycrest Prods., 294 F.3d 1279 (11th Cir. 2002). This Courtand the district courts within it have relied on the “nexus” standard in adjudicatingsimilar issues. E.g., Haynes v. Dunkin' Donuts, LLC, 741 Fed. App’x 752, 754 (11thCir. 2018) (citing Rendon 294 F.3d at 1283); Access Now v. Southwest Airlines, 227F. Supp. 2d 1312, 1320 (S.D. Fla. 2002) (holding Rendon found “‘a nexus betweenthe challenged service and the premises of the public accommodation’”) (emphasisadded); Haynes v. Pollo Operations, Inc., 2018 U.S. Dist. LEXIS 51748, *5, 2018WL 1523421, *2 (S.D. Fla. 2018) (Rendon’s “holding relied on cases that ‘require[d]a nexus between the challenged service and the premises of the publicaccommodation’ and noting that “a majority” of courts in 11th Circuit follow thenexus approach) (internal citations omitted and emphasis added); Haynes v. Kohl'sDep't Stores, Inc., 391 F. Supp. 3d 1128, 1134 (S.D. Fla. 2018) (“Thus, in theEleventh Circuit, ‘[w]ebsites are subject to the ADA if a plaintiff can establish anexus between the website and the physical premises of a public accommodation.Indeed, this concept has support in Rendon . . . .’”) (internal citations omitted andemphasis added); Fuller v. Mazal Group LLC, 2018 U.S. Dist. LEXIS 129969, *8,5

2018 WL 3584700, *3 (S.D. Fla. 2018) (concluding that “the Court finds thatPlaintiff has sufficiently pleaded a nexus between Defendant's website and itsphysical stores.”). Nationally, courts also recognize that the nexus approach has ahome in 11th Circuit law and in their own law.2Even if the nexus standard was not established in Rendon with sufficientclarity (we believe it was), it is an extraordinarily important issue, particularly in2E.g., Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998)(plaintiff failed to allege a nexus between the place of public accommodation andthe insurance benefits offered by the employer); Weyer v. Twentieth Century FoxFilm Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (“some connection between thegood or service complained of and an actual physical place is required”); Nat'l Fed'nof the Blind v. Target Corp., 452 F. Supp. 2d 946, 952 (N.D. Cal. 2006) (“courtshave held that a plaintiff must allege that there is a ‘nexus’ between the challengedservice and the place of public accommodation.”); Castillo v. Jo-Ann Stores, LLC,286 F. Supp. 3d 870, 881 (N.D. Ohio 2018) (“Castillo has sufficiently alleged anexus between Jo-Ann's website and its brick-and-mortar stores. Therefore, theCourt need not determine whether Jo-Ann's website is itself a place of publicaccommodation.”); Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1114-16 (N.D.Cal. 2011) (no nexus between the website and a physical location); Jancik v. RedboxAutomated Retail, LLC, No. SACV 13-1387-DOC (RNBx), 2014 U.S. Dist. LEXIS67223, 2014 WL 1920751, at *8-9 (C.D. Cal. May 14, 2014) (not asufficient nexus between the website and physical kiosks); Dominguez v. BananaRepublic, LLC, 2020 U.S. Dist. LEXIS 72193, *22, 2020 WL 1950496, *8(S.D.N.Y. 2020) (“factors that district courts in the Eleventh Circuit consider indetermining whether a website has a sufficient nexus to the physical store”)(emphasis added); Carroll v. Fed Financial Fed. Credit Union, 324 F. Supp. 3d 658,665 (E.D. Va. 2018) (“District courts in the Eleventh Circuit have similarly held thatwebsites are subject to the ADA if a plaintiff can establish a nexus between thewebsite and the physical premises of a public accommodation.”).6

light of the current pandemic and the general movement of personal and commercialinteractions online.3The district court did not err in adopting the nexus, or gateway, lens throughwhich to view the Winn-Dixie website. The panel majority’s shattering that lens isbound to cause confusion in the district courts. Therefore, the Court shouldVACATE the panel majority’s improvident negation of the nexus standard.43For example, Winn-Dixie’s website is now offering even more things online thanit did in 2017 (the majority opinion speaks to 2017 only). Winn-Dixie now sellsproducts online, and offers delivery online. Winn-Dixie is offering COVID-19vaccines in Florida with online scheduling , and says “Please note: vaccinationappointments can only be made online at this moment. Appointments cannot bemade by calling Winn-Dixie or the Winn-Dixie id-vaccine ).The Court may take judicial notice of Winn-Dixie’s current website. See Fed. R.Evid. 201. This Court has relied on a party’s own website. K.T. v. Royal CaribbeanCruises, Ltd., 931 F.3d 1041 (11th Cir. 2019). Other courts have also found itappropriate to take judicial notice of a party’s website. E.g., In re UBS AuctionRate Securities Litigation, No. 08 Civ 2967 (LMM), 2010 U.S. Dist. LEXIS59024, 2010 WL 2541166, *15 (S.D.N.Y. June 10, 2010) ("[I]t is appropriate totake judicial notice of the contents of a party's website"); Doron Precision Systems,Inc. v. FAAC, Inc., 423 F.Supp.2d 173, 179 n. 8 (S.D.N.Y. 2006); Monsanto Co. v.PacifiCorp, No. CV 01-607 E LMB, 2006 U.S. Dist. LEXIS 27565, 2006 WL1128226, *8 n. 4 (D. Idaho Apr. 24, 2006).4The dissent provides a workable standard which is consistent with the nexusapproach and which Plaintiff would support under governing Circuit law. Thedissent states, “[w]e need only apply the statutory text and ask whether such awebsite's incompatibility with screen-reading software prevents disabled customersfrom fully and equally enjoying the offerings of a place of public accommodation.See 42 U.S.C. § 12182(a).” Dissent at 65, n.14. If a website triggers Title IIIcompliance because of its functioning as a gateway to, or extension of, the physicalspace, then it is obligated to ensure, in the dissent’s words, that its “disabled7

N IS CLEAR. THE MAJORITY’S CONCLUSIONOTHERWISE REDUCES THE ACCESSIBILITY REQUIREMENTSTO NAUGHT.Winn-Dixie’s violation of the statute and regulation is clear. The majorityreduces the accessibility requirements to naught. The comparison group used by themajority contradicts the established standard in A.L. by and through D.L. v. WaltDisney Parks & Resorts US, Inc., 900 F.3d 1270, 1294–95 (11th Cir. 2018); Silva v.Baptist Health S. Fla., Inc., 856 F.3d 824, 834 (11th Cir. 2017).The dissent persuasively describes how Winn-Dixie violates both theprovision of Title III which prohibits “different treatment,” 42 U.S.C. §12182(b)(2)(A)(iii), and the regulation which requires the furnishing of “appropriateauxiliary aids and services where necessary to ensure effective communication withindividuals with disabilities.” 28 C.F.R. § 36.303(c)(1).Without seeking here to set forth the full depth of the dissent’s analysis, itsessence perhaps is this:Winn-Dixie does not dispute that it failed to provide an auxiliary aidwhen it refused to make its website compatible with screen-readingtechnology. As a result, visually-impaired individuals could not accessthe website. And Winn-Dixie provided no alternative way for them torequest express prescription refills or digitally link coupons to theirrewards cards so that discounts could be applied seamlessly atcustomers [are] fully and equally enjoying the offerings of a place of publicaccommodation. See 42 U.S.C. § 12182(a).” Id.8

checkout—privileges and advantages that sighted customers enjoyed.That conduct amounted to discrimination under § 12182(b)(2)(A)(iii)and was therefore prohibited by § 12182(a).Dissent at 34.The panel majority repeatedly emphasizes that the Winn-Dixie website – asof 2017 – did not permit its use to buy any products or services; it was not a“gateway” or connection to, entrée or “nexus” to the bricks-and-mortar Winn-Dixiegrocery store.5 That “fact” is then used by the majority as the basis both for findingno discrimination and for the panel’s rejection of this Circuit’s established law thata website which is a gateway, connection to, entrée or “nexus” to a brick-and-mortarplace. under Title III of the ADA.It is indeed an extraordinary, new, unprecedented, and harmful ruleannounced by the majority opinion -- a rule which reduces the accessibilityrequirements to naught. “On the facts of this case,” we are told, ADA access appliesonly “in the physical stores” of Winn-Dixie:. . .we hold that the absence of auxiliary aids [absence of screenreader]on Winn-Dixie's website does not act as an intangible barrierthat results in Gil being discriminatorily "excluded, denied services,segregated or otherwise treated differently than other individuals" inthe physical stores—the operative place of public accommodation—because of the absence of auxiliary aids and services as contemplatedby the ADA. 42 U.S.C. § 12182(b)(2)(A)(iii). Rather, we conclude that,5The panel majority reaches this conclusion even though prescription-ordering orcoupon-facilitation as an ADA-covered “service” to the customer is available onlythrough the website.9

on the facts of this case, Gil is able to enjoy fully and equally "thegoods, services, facilities, privileges, advantages, or accommodationsof" Winn-Dixie's physical stores as contemplated by Title III of theADA. Id. § 12182(a).Maj. Op. at 31 (emphasis added).This is disconnected from the circumstances of this case. The panel majoritywould only hold Winn-Dixie to be ADA-compliant inside its “physical stores,”ignoring that the issue is the inaccessibility to Winn-Dixie’s services andinformation on its website.The dissent demonstrates the fallacies and inconsistencies in the panelmajority’s approach. Judge Pryor’s opinion is worthy of reframing as a replacementfor the panel majority’s opinion.Accordingly, Plaintiff Gil urges the Court to VACATE the referenced ADAanalysis of the majority opinion as unsupported by, and in contradiction to theapplicable law.III. IN THIS CASE REGARDING DISCRIMINATION AGAINST BLINDINTERNET USERS, THE MAJORITY’S STANDARD OFCOMPARISON VIOLATES THE STANDARD ESTABLISHED IN A.L.V. WALT DISNEY PARKS & RESORTS US, INC. AND SILVA V.BAPTIST HEALTH S. FLA., INC.In this case regarding discrimination against blind internet users, themajority’s standard of comparison (“a sighted customer who does not have internetaccess”) contradicts the standard established in A.L. v. Walt Disney Parks & ResortsUS, Inc., 900 F.3d 1270, 1294-95 (11th Cir. 2018); Silva v. Baptist Health S. Fla.,10

Inc., 856 F.3d 824, 834 (11th Cir. 2017) (a non-disabled person accessing thewebsite).What are the comparison groups for “equal opportunity” under Title III? “TheADA “focus[es] on equal opportunity [for the disabled] to participate in or benefitfrom the defendant’s goods and services,” A.L. by and through D.L. v. Walt DisneyParks & Resorts US, Inc., 900 F.3d 1270, 1294–95 (11th Cir. 2018) (“A.L.”)(emphasis added).The majority opinion holds that the proper comparison is between a blindcustomer seeking website access and a “sighted customer who does not have internetaccess.” The correct comparison under Title III is between a blind person seekingaccess to the website, and a non-disabled customer WITH internet access seekingaccess to the website. Gil’s access to the website was not substantially equal to thatafforded non-disabled customers.Majority Opinion ContradictsCourt’s Prior HoldingsThis Court’s Prior Holdings“Instead, what matters is whetherthe handicapped patient wasafforded auxiliary aids sufficient toensure a level of communicationabout medically relevantinformation substantially equal tothat afforded to non-disabledpatients.”“Gil is at no less of a disadvantagethan a sighted customer who doesnot have internet access andtherefore cannot access thestreamlined online process.”Maj.Op. at 27, n. 20 (emphasis added).Silva v. Baptist Health S. Fla., Inc., 856F.3d 824, 834 (11th Cir. 2017).11

“We first agree with our sistercircuits that public accommodationsmust start by considering how theirfacilities are used by nondisabledguests and then must takereasonable steps to provide disabledguests with a like experience.A.L., 900 F.3d at 1294 (emphasisadded).“(1) ‘start by considering how theirfacilities are used by nondisabledguests,’ and (2) ‘then takereasonable steps to provide disabledguests with a like experience.’(internal quotations omitted).A.L., 900 F.3d at 1294 (11th Cir. 2018)(emphasis added).IV.THE PANEL DECISION OF A “PRIMARY” ISSUE WHICH WAS –TWICE – NOT DECIDED BY THE DISTRICT COURT, WAS ANERROROFEXCEPTIONALIMPORTANCEINTHECIRCUMSTANCES OF THIS CASE.The panel majority characterized this as the first “primary” issue on thisappeal: “pursuant to the plain language of Title III of the ADA, publicaccommodations are limited to actual, physical places. Necessarily then, we holdthat websites are not a place of public accommodation under Title III of the ADA.”Maj. Op. 17-18 (footnotes omitted).This panel decision appears to be the only decision by this Court or by anydistrict court in the Eleventh Circuit which per se excludes websites from being12

“public accommodations” under the ADA.6 This decision was unrestrained by theprinciple of not deciding issues which the district court did not decide as well as theprinciple of not deciding issues not adversarially litigated below.The panel majority accepts that the district court twice – before and after trial– explicitly did not

56. Winn-Dixie Logistics, LLC 57. Winn-Dixie Montgomery, LLC 58. Winn-Dixie Montgomery Leasing, LLC 59. Winn-Dixie Properties, LLC 60. Winn-Dixie Raleigh Leasing, LLC 61. Winn-Dixie Raleigh, LLC 62. Winn-Dixie Stores Leasing, LLC 63. Winn Dixie Stores, Inc. 64. Winn-Dixie Supermarkets, Inc. 65. Winn-Dixie Warehouse Leasing, LLC

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